The Florida Supreme Court building. Credit: Michael Moline
Precisely 1,722,987 Floridians voted in 1980 to enshrine a right to personal privacy in the Florida Constitution, representing 60 percent of the votes cast — a right the Florida Supreme Court in 1989 would read to broadly protect abortion rights in a case called In re T.W.
Floridians — 4,308,513 of them, or 55 percent of the total cast — appeared to endorse the court’s interpretation when the issue came before them again in 2012.
Now, seven justices of the Florida Supreme Court could sweep away those rights and uphold HB 5, the law Gov. Ron DeSantis signed in April outlawing abortions performed after 15 weeks’ gestation, with exceptions to preserve the mother’s health or in cases of fatal fetal abnormalities but not for rape and incest.
If the court does that, it arguably would dismiss the millions of Floridians who have voted to uphold abortion rights — not to mention the 57 percent of state respondents who disapproved or somewhat disapproved of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, overturning its 1973 precedent in Roe v. Wade.
That was from a statewide survey in early July by the University of South Florida, in collaboration with researchers from Florida International University.
“In re T.W., which now is what is authorizing abortions in Florida, is a younger precedent (1989 — 33 years) than Roe (1973 — 49 years). So, if the U.S. Supreme Court can discard a 49-year-old precedent, the Florida Supreme Court certainly can jettison a 33-year-old precedent,” Bob Jarvis, a constitutional law professor at Nova Southeastern Shepard Broad College of Law, told the Phoenix by email.
“And, of course, In re T.W. was authored by a fairly liberal Florida Supreme Court, which no longer exists,” he added.
It might require a new constitutional amendment to undo such a ruling. Abortion-rights advocates are beginning to plan for that eventuality, said state House member Anna Eskamani, a Democrat from Orange County, although the process remains in its preliminary stages.
It’s not clear when a decision on HB 5’s 15-week abortion ban will come. State Circuit Judge John Cooper in Leon County ruled on July 5 that he was bound by In re T.W., the 1989 ruling finding that the Constitution’s privacy clause extended to abortion rights, absent any directive otherwise from the state’s highest court.
Cooper issued a temporary restraining order against HB 5, which had already been in effect for four days when he handed down his ruling.
“Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law,” the amendment, enshrined as Article I Section 23 of the state’s governing charter, proclaims.
The majority opinion in In re T.W., striking down an abortion parental consent law for minors, was written by the late Justice Leander Shaw, who noted that the U.S. Supreme Court had long recognized states’ right to protect privacy rights more extensively than does the U.S. Constitution.
Furthermore, the amendment “was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words ‘unreasonable’ or ‘unwarranted’ before the phrase ‘governmental intrusion’ in order to make the privacy right as strong as possible,” Shaw wrote.
He concluded: “Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment.”
The case is now before the First District Court of Appeal, which gets first crack at cases involving state government. Litigators in Attorney General Ashley Moody’s office have asked that court to immediately certify the case to the Supreme Court. Speed is necessary, they argued, to protect a duly enacted law and prevent patients flocking to Florida from more restrictive states to obtain abortions.
The abortion providers challenging the law have sought to delay sending the case up the line, but it will land before the justices eventually.
It will find a markedly different environment compared to 1989. Then, more liberal justices predominated on the high court, including Justice Shaw. Today, not a single African American wears the black robe (although Jamaica-native Palm Beach County trial judge Renatha Francis may soon come on board; that’s a whole other story, though).
And not a single sitting justice was appointed by a Democratic governor; Gov. DeSantis, in particular, has stocked the courts and the judicial nominating commissions that help select them with trusted members of the conservative legal movement. He could do that because of mandatory retirements for three liberals that took effect as he entered office in January 2019.
DeSantis’ court has obliged him by freely overturning precedents established by the more liberal court, including issuing rulings making it easier to execute inmates.
The court explained its thinking in an unsigned opinion.
“In a case where we are bound by a higher legal authority — whether it be a constitutional provision, a statute, or a decision of the [U.S.] Supreme Court — our job is to apply that law correctly to the case before us. When we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, the precedent normally must yield,” they wrote.
That rationale foreshadowed the one in Justice Samuel Alito’s ruling in Dobbs v. Jackson Women’s Health Care: That the Roe ruling was “egregiously wrong” and that “stare decisis [respect for precedent] does not command the preservation of such a decision.”
Wrong or not, the In re T.W. ruling was part of a nationwide trend. Courts in 10 other states have found protections for access to abortion under their state constitutions: Alaska, Arizona, California, Iowa, Kansas, Massachusetts, Minnesota, Montana, New Mexico, and New Jersey, according to the Center for Reproductive Rights.
In fact, courts in Alaska, California, Iowa, Kansas, and Montana cited the Florida In re T.W. ruling.
The Kansas Supreme Court, for example, ruled that the framers of its 1859 constitution intended to broadly protect “personal autonomy,” “human dignity,” “bodily integrity,” and “self-determination.” Other state courts, like Florida’s, cited constitutional privacy clauses; others found that the right to equal protection of the laws protected abortion access.
Nevada voters added abortion protections through 24 weeks to their constitution through a referendum in 1990.
However, four states have enacted constitutional amendments expressly declaring that they don’t protect abortion rights, according to the Gutmacher Institute: Alabama, Louisiana, Tennessee, and West Virginia.
Abortion will be on the ballot in five states this fall — via initiatives to protect access in California and Vermont and to restrict it in Kansas, Kentucky, and Montana.
In Michigan, the Reproductive Freedom for All Initiative recently filed 753,759 signatures to enshrine abortion access in Michigan’s Constitution, as reported by the Michigan Advance, a member with the Florida Phoenix of the nonprofit States Newsroom network.
But was In re T.W. wrong?
Florida Voice for the Unborn executive director Andrew Shirvell argues yes. In a written statement he issued after Cooper cited the precedent in enjoining enforcement of HB 5, Shirvell noted that “the text of the Florida Constitution — including the privacy amendment that was added in 1980 – does not mention anything about abortion at all.”
Mat Staver, the former Liberty University School of Law dean and leader of Liberty Counsel, which is based in Orlando and asserts religious freedom in courts, made much the same point.
“First, Article I, Section 23, was never meant to apply to general privacy and certainly not abortion. In this respect, Florida will be a mirror image of the Dobbs decision at the Supreme Court,” he told the Phoenix in a written statement.
In a legal brief, the state’s lawyers quote the amendment’s main Senate sponsor denying the measure would have any effect on abortion.
No mention of ‘abortion’
The word “abortion” appears nowhere in the clause. Political data cruncher Matthew Isbell writes in an analysis that its authors in the Legislature were mostly concerned with blocking big government intrusion into people’s privacy rights against “warrantless wiretaps and other tech-fueled invasion.”
“This vote came eight years after Roe v Wade. Depending on who you ask, the affirming the right to privacy was either an extension of backing abortion rights or unrelated. What I can say is that during the debate and vote on the amendment, abortion rarely came up,” Isbell writes.
Indeed, he adds, more ink was spilled over whether the initiative would protect gay rights or impede law enforcement.
Mike Beltran, an attorney and a Republican House member representing part of Hillsborough County, chimed in through a column published by Florida Politics.
“[T]he 1980 Amendment to the Florida Constitution was enacted less than a decade after Roe, while pro-lifers were actively attempting to reinstate protections for the unborn, and less than a decade before they succeeded in Casey, and yet it contains no mention of abortion whatsoever,” he wrote.
“Thus, the history of the Florida Constitution weakens the pro-abortion case law, it does not strengthen it.”
Adam Richardson, a West Palm Beach appellate lawyer, noted in Slate that, in addition to numerous Florida Supreme Court rulings building on In re T.W., the voters endorsed a reading of the privacy clause broad enough to embrace abortion rights. He referred to that 2012 defeat of the Legislature-sponsored Amendment 6 to explicitly repudiate In re T.W.
Its ballot language declared that no state money could pay for abortions and added:
“This proposed amendment provides that the state Constitution may not be interpreted to create broader rights to an abortion than those contained in the United States Constitution. With respect to abortion, this proposed amendment overrules court decisions which conclude that the right of privacy under Article I, Section 23, of the state Constitution is broader in scope than that of the United States Constitution.”
To repeat, 55 percent of the total voted ‘no.’
True, voters did approve a constitutional amendment in 2004 allowing the Legislature to pass a parental abortion notification law for minors with nearly 65 percent (representing 4,639,635 “yes” votes). But that never addressed the broader right for adults to obtain abortions.
‘Voters could not have been clearer’
“Voters [in 2012] could not have been clearer: Our state Constitution’s explicit, freestanding, and broadly worded privacy right protects the right to an abortion. And the protection of the right is in no way affected by the federal constitution or how it is interpreted,” Richardson wrote.
Beltran, in his Florida Politics piece, begged to differ.
“[T]he Constitution is amended through successful amendments, not failed ones. Proponents of an amendment must follow a strict set of procedures and then obtain 60 percent of the vote on election day. By contrast, an amendment may be defeated with less than 41 percent of the vote. This 41 percent may be able to block an amendment, but they cannot create new law,” he wrote.
Richardson insists that the textualist understanding of jurisprudence to which the state court’s justice claim adherence settles the question. The idea is to interpret the words on the page and nothing else.
“Approval of Amendment 6 would have rewritten the privacy right as it relates to abortion. In a very real sense, the rejection of the amendment was a readoption of the privacy right — a readoption that incorporated the Florida Supreme Court’s abortion precedents up until that point in time.”
Rep. Eskamani argues that, even if abortion didn’t come up by name during the 1980 election, voters understood what they were doing.
“Roe v. Wade was in the news, right? That only happened seven years ago and was all about privacy rights so, if you didn’t like abortion access, you would have voted against that. And 40 percent did vote ‘no.’ But 60 percent voted ‘yes,’ so the majority wins. That should be the structure of our democracy but here we go: another example of Republicans trying to ignore the majority, just like they did on Jan. 6,” she said.
Jarvis, the Nova law professor, thinks this court will take Beltran’s approach.
“The 2012 Florida constitutional amendment has no bearing — failed constitutional amendments mean nothing because all they express is that the public did not want that particular amendment to be put into the Florida Constitution,” he told the Phoenix.
“Moreover, the 2012 amendment involved government funding of abortions, so the issue wasn’t so much abortion as it was the use of taxpayer money. Plus, it was 10 years ago, when Roe was still the law of the land.”
Regarding the privacy clause, “the Florida Supreme Court can (and will) easily say that it was never meant to extend to abortion and In re T.W. incorrectly tied abortion to the amendment,” Jarvis said.
About that, Cooper said in his ruling: ““This court must follow the Florida Supreme Court’s precedents on the right to privacy as those precedents currently exist, not as they might exist in the future.”
Jarvis added the court could find another compelling interest, such as preserving human life, that overrides the privacy clause.
“And, of course, that’s easy. Article I, Section 2, says: ‘All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life … .’
“So, all the Florida Supreme Court has to do is find that a fetus/embryo is a person and has a right to enjoy life, and the override of Article I, Section 23, becomes a fait accompli,” Jarvis said. Whether the justices would go that far is anyone’s guess.
“Lastly, if one views abortion as murder, then the argument is even easier, for the Florida Constitution does not give individuals the right to commit murder. Of course, Article I, Section 17, does give the state the right to commit murder by authorizing the death penalty, but that’s very different.”
Correction: An earlier version of this story misreported the number of justices on the Florida Supreme Court. There are seven.
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